All the blather about the University of Michigan race discrimination case has at least proved one thing: The Supreme Court's abandonment of legal reasoning has taken the public by storm! Now everyone treats constitutional law as if it is an ongoing referendum about various public policy issues. Pundits simply assume state colleges are allowed to create a racial stew. It's just a question of whether this or that system is desirable as a public policy matter. We hear about stigmas, legacies, SAT scores, athletes – all of which have nothing to do with the Constitution.
Even the wackiest Supreme Court rulings always make a big show of pretending to consult the Constitution before announcing, for example, that Christmas displays must have a particular ratio of reindeer to virgins. I don't know whom the Supreme Court thought it was fooling, but Americans were not fooled. The Growing Constitution has grown into a collection of primal urges, devoid of law. People believe their wild irrational appetites should find expression in Supreme Court opinions. We await Supreme Court rulings like primitives waiting for a wart healer's cure. Liberals love this system of pretend-law, because it allows them to get away with murder – sometimes literally, as in Roe v. Wade.
Like everyone else in the universe, I too have strong opinions about how universities should run their admissions systems. But there is no Ann's Opinion Clause in the Constitution. There is, however, an Equal Protection Clause.
The 14th Amendment to the Constitution prohibits states from discriminating on the basis of race. It says: Nor shall any state "deny to any person within its jurisdiction the equal protection of the laws." That amendment grew out of the Republicans' first big dust-up with the Democrats over race – the Civil War. Then, as now, Democrats demanded the right to discriminate on the basis of race. The 14th Amendment sternly informed Democrats that they would have to stop. Democrats dropped slavery but desperately clung to state-sanctioned race discrimination for another hundred years.
It took a Supreme Court ruling in 1954 and a Republican president sending in the National Guard to force Democrats to stop their infernal race discrimination. In the 1954 case Brown v. Board of Education, the Supreme Court held that the Equal Protection Clause prohibited the states from engaging in race discrimination in education. Democrats responded with massive resistance.
Ten years later, Congress passed the 1964 Civil Rights Act, expanding upon the nondiscrimination principle of the Equal Protection Clause. Among other things, the 1964 Civil Rights Act prohibits any institution that receives federal funds – i.e., Harvard – from discriminating on the basis of race, color, religion or national origin. Though only a bare majority of Democrats voted for the act, it seemed as if the Democrats were finally going to mend their ways and truly embrace a color-blind society.
Alas, they were just resting up for the next battle. After taking a few years off, the Democrats got back into race discrimination in a big way. They apparently thought they could fool us by switching which race they thought should be discriminated against. It must be something in Democratic genes. They just love race discrimination.
So now we have idiots like Sen. Joe Biden, D-Del., saying race discrimination is no different than colleges admitting legacies. One difference is – as Terry Eastland famously said – we didn't fight a civil war to stop colleges from giving a preference to the children of alumni. But Biden says colleges shouldn't stop obsessing with race "unless we're going to eliminate it all, all incentives, like, for example, in the case in Michigan everybody is talking about now. You know you get four points if you're a legacy ..." Sure, that's just like getting 20 points for being black.
Biden thinks if he gets applause from a student audience, he must have made a legal argument. He seems to imagine he is actually learning law from watching Court TV. His next irrelevant point was: "Give me a break. I mean how many people would get into Harvard, Yale and the rest of these places if their father had not gone?" There's an answer to that! This columnist did the math! On the basis of their SAT scores, 82 percent of legacies admitted to Harvard would have been admitted to Harvard even if they were not legacies. Only 45 percent of blacks admitted to Harvard would have been admitted to Harvard if they were not black.
But I've been tricked into arguing a nonissue by Biden's imbecility. If colleges wanted to admit only legacies, or only tuba players, or only people who got astonishingly low SAT scores – to ensure some of their graduates would be U.S. senators one day – the Constitution wouldn't stop them.
What the states, including state colleges, cannot do under the Constitution is discriminate on the basis of race. What even private colleges cannot do under federal law – if they accept federal funds – is discriminate on the basis of race. Neither the Constitution nor federal law says anything about discrimination on the basis of SAT scores, legacies or athletic ability. We've had a civil war, a constitutional amendment, a Supreme Court ruling, a National Guard mobilization and a federal civil rights law to try to get the Democrats to stop with the race discrimination. All we can do now is sit back and wait for the wart healers to speak.